[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR385.405]

[Page 898-899]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 385--RULES OF PRACTICE AND PROCEDURE--Table of Contents
 
   Subpart D--Discovery Procedures for Matters Set for Hearing Under 
                                Subpart E
 
Sec. 385.405  Use of depositions (Rule 405).

    (a) In general. During a hearing, the hearing of a motion, or an 
interlocutory proceeding under Rule 715, any part or all of a deposition 
taken pursuant to Rule 404, so far as admissible as though the witness 
were then present and testifying, may be used against any participant 
who was present or represented at the taking of the deposition or who 
had reasonable notice thereof, in accordance with any of the provisions 
of this section.
    (1) If the deponent is a witness at a hearing, any participant may 
use the deposition of that witness at the time of the witness' 
examination to contradict, impeach, or complete the testimony of that 
witness.
    (2) The deposition of a participant or of any person who, at the 
time of taking the deposition, was an officer, director, or managing 
agent of a participant, or a person designated under Rule 404(b)(3) to 
testify on behalf of a participant may be used by another participant 
for any purpose.
    (3) The deposition of any witness, whether or not a participant, may 
be

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used by a participant for any purpose, if the presiding officer finds 
that:
    (i) The witness is dead;
    (ii) The witness is unable to attend or testify because of age, 
illness, infirmity or imprisonment;
    (iii) The participant offering the deposition is unable after the 
exercise of due diligence to procure the attendance of the witness by 
subpoena; or
    (iv) Exceptional circumstances make it necessary in the interest of 
fairness with due regard to the importance of presenting the witness in 
open hearing, to allow use of the deposition.
    (4) If only part of a deposition is offered in evidence by a 
participant, a participant may require the introduction of any other 
part which ought, in fairness, to be considered with the part 
introduced, and any adverse participant may introduce any other part.
    (b) Objections to admissibility. No part of a deposition will 
constitute a part of the record in the proceeding, unless received in 
evidence by the Commission or presiding officer. Subject to paragraph 
(c) of this section, a participant may object to receiving into evidence 
all or part of any deposition for any reason that the evidence would be 
excluded if the deponent were present and testifying.
    (c) Effect of errors and irregularities in depositions. (1) Any 
objection to the taking of a deposition based on errors or 
irregularities in notice of the deposition is waived, unless written 
objection is promptly served on the participant giving the notice.
    (2) Any objection to the taking of a deposition based on the 
disqualification of the officer before whom it is to be taken is waived, 
unless the objection is made before the deposition begins or as soon 
thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence.
    (3) Any objection to the competency of the witness or the 
competency, relevancy, or materiality of testimony is not waived by 
failure to make the objection before or during the taking of the 
deposition, unless the basis for the objection might have been removed 
if the objection had been presented at the taking of the deposition.
    (4) Any objection to errors and irregularities occurring at the oral 
examination in the manner of taking the deposition, in the form of the 
questions and answers, in the oath or affirmation, or in the conduct of 
participants, and errors of any kind that might be obviated, removed or 
cured if presented at the deposition, is waived unless objection is made 
at the taking of the deposition.
    (5) Any objection based on errors or irregularities in the manner in 
which the testimony is transcribed or the deposition is prepared, 
signed, certified, endorsed, or otherwise dealt with by the officer is 
waived, unless the objection is made with reasonable promptness after 
the defect is, or with due diligence should have been, ascertained.